Abovementioned question could be asked after reading to the recent decision of the Supreme Court of 16 January 2015 (ECLI:NL:HR:2015:83) between (a predecessor of) TVM in its capacity of motor liability insurer and its policy holder, a driver of a car involved in a collision with another car. The other car became damaged and the driver of that car injured.

An injured person has in such a case in accordance with (Article 6 of) the Motor Insurance Liability Act (“MILA”) a direct action right against motor liability insurer if and when the insured under the policy is liable against the injured person. The liability of the insured was not a matter of discussion in this case. The injured person settles with TVM. TVM as motor liability insurer is of the opinion that it has a recourse action (Art. 15 MILA) against its policy holder, being the driver of the car which caused the accident. Not until the Supreme Court the dispute is (for the time being) decided in favour of TVM.

The facts
On 30 October 2008 the motor vehicle insured by TVM and driven by the policy holder, collided with a vehicle in front because it kept insufficient distance and the car could not be stopped in time by the driver. The vehicle in front was damaged and its driver injured. On the agreed statement of facts, the TVM insured driver confirms that he has driven after he had been drinking. The driver wrote down amongst others:

-   “I have been on top of him with alcohol”
-   “Driven with alcohol. I am sure a police report will follow”

The police report in itself mentioned all other possible external characteristics of the use of alcohol. The breath test confirms with a promillage of nearly 2‰ the fuddled condition of the driver.

According to TVM in Appeal the driver told to the police that over a period of approximately three years it was his habit on Thursday and Friday nights to drive to the pub, consume 15 to 20 beers and subsequently drive home in his car.

The policy of TVM did not have an exclusion of cover in case of driving under influence (“Alcohol clause”), but did have an exclusion in case of willful acting, stipulating:

“From this insurance is excluded (…) the damage or the accident which has been caused willfully, recklessly or with consent of the insured”.

While invoking the mentioned exclusion, more in particular the part of “recklessly caused”, in combination with Art. 15 MILA, TVM tries to recover from its insured the amount it paid to the injured person.

The District Court
The District Court honors the claim of TVM to a large extent. The District Court concludes that the driver by driving after (considerable) use of alcohol knowingly and willingly accepted the considerable risk with regard to the creation of the traffic accident.

The Court of Appeal
The Court of Appeal of Arnhem-Leeuwarden decides otherwise. First of all the Court of Appeal establishes that no so-called alcohol clause has been included in the policy conditions. Consequence of that – i.e. if no alcohol clause is included – the answer to the question whether the damage as a result of driving under influence is covered by the exclusion clause regarding willful acting, the decision of the Supreme Court of 13th January 2006 (NJ 2006, 282) is leading. In that Supreme Court decision it is decided, according to the Court of Appeal, that it cannot be said that the general public who concludes a MILA policy, is considered to know or from all available sources could know, that in general such insurance policies cover is excluded for damage inflicted by the insured motor vehicle, while the driver has more alcohol in his blood than allowed by law. In short: the Court of Appeal decides that the driver should not reasonably have understood that the damage caused by him was excluded from cover under the insurance. TVM’s appeal on the “willful acting exclusion” clause fails.

The Supreme Court
The Supreme Court reverses the decision of the Court of Appeal. More in particular the referral by the Court of Appeal to the decision of the Supreme Court of January 2006 as assessment criterion is not correct.

Intermezzo 1
The decision of January 13, 2006 concerned the concurrence of two MILA insurances whereby the MILA insurer, who compensated damage of the injured party, tried to take recourse on the other MILA insurer. The last mentioned insurer refers to a (cover) exclusion clause in which was excluded “damage caused while the actual driver was not legally entitled to drive the motor vehicle”. Apparently it concerned an exclusion for driving without a valid drivers’ licenses. However the question arose in respect to driving under influence, which is also covered by the Road Traffic Act (WVW 1994) stipulating in article 8 (2) that it is forbidden to drive a car after consuming alcohol containing drinks if and when after investigation it appears that the promillage is more than 0.5‰. Given the fact that the driver had substantially more alcohol in his blood than 0.5‰ it could be said that he was not legally entitled to drive the car. The driver should have been aware of that, according to the Court of Appeal of 13th April 2004. The Supreme Court reverses the decision of the Court of Appeal by decision of 13 January 2006 (NJ 2006, 282).

The Supreme Court continued 1
The Supreme Court advises that “legally entitled” as mentioned in its decision of 13th January 2006 is not of any relevance in the present case. The question to be answered is whether the policy holder/driver should have understood, when concluding the insurance contract, that with the in the TVM policy mentioned exclusion in case of willful acting, cover was denied in relation to acts as the present one, i.e. driving of the insured car after use of a substantial amount of alcohol in combination with the drivers’ habits as advised to the police.
With regard to the construction of the exclusion clause in case of willful acting the Supreme Court refers to its decision of 20th February 2004 (NJ 2005, 493) with the addition that in and as so far the insurance contract is concluded as private consumer, the most preferable construction for the insured prevails, if there is any doubt about the meaning of the exclusion clause (“contra proferentem”).

Intermezzo 2
In its decision of 20th February 2004 the Supreme Court indicated that the construction of a contractual provision has to be done, in accordance with the Haviltex-criterion and in accordance with the CAO-criterion, which criteria are not each other’s opposite but transform fluently.  Of decisive importance are all circumstances of the actual case, while applying the standards of reasonableness and fairness. Construction therefore is not only be done on the basis of the linguistic meaning of the words of the contract/provision, although from a practical point of view that linguistic meaning of those words, given the document as a whole, as generally accepted in the relevant circle of society, is of major importance for the construction, according to the Supreme Court.

The Supreme Court conclusion
The Supreme Court reverses the decision of the Court of Appeal because the Court of Appeal applied an incorrect standard, while furthermore the Court of Appeal has insufficiently dealt with the actual circumstances of the use of alcohol and other habits of the driver as put forward by TVM.

Conclusion
If in TVM’s policy an alcohol clause had been included, it would not have been necessary for three instances to give a decision about the claim. Furthermore whether TVM’s claim will be successful is not certain yet. The Supreme Court refers the dispute back to another Court of Appeal who will have to decide in accordance with the decision of the Supreme Court, including the reference to the position of the private consumer.
Why do it the easy way?